November 26, 2013

What the Gilardi Court Got Right and Wrong

Caroline Mala Corbin, Gilardi v. HHS, Religious Freedom Restoration Act

by Caroline Mala Corbin, Professor of Law, University of Miami School of Law
The D.C. Circuit’s recent decision addressing the contraception mandate – Gilardi v. United States Department of Health and Human Services – got some things right but many more things wrong. The contraception mandate is the Affordable Care Act’s requirement that health care plans, now mandatory for large employers, include all FDA-approved contraception without any cost sharing by employees.
Francis and Philip Gilardi own and manage Freshway Foods and Freshway Logistics, fresh food processing and delivery companies. The brothers are religiously opposed to contraception and argued that the mandate violates their corporations’ and their own religious rights under the Religious Freedom Restoration Act (RFRA). Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A divided panel of the D.C. Circuit held that the brothers were entitled to an exemption from the mandate under RFRA.
What the Gilardi Court got right. The Gilardi Court held that secular corporations are not “persons” capable of religious exercise and therefore cannot bring a RFRA claim. Because RFRA draws from Free Exercise Clause jurisprudence, the D.C. Circuit took the occasion to examine whether corporations had free exercise rights. It rejected such a notion, observing that the Supreme Court has never extended free exercise protection to secular corporations and “has expressed strong doubts about the proposition.” “When it comes to the free exercise of religion . . . the [Supreme] Court has only indicated that people and churches worship.”

The Gilardi Court further rejected the “simple reasoning” that “Citizens United plus the Free Exercise Clause equals a corporate free exercise right.” It points out that Citizens United was “the culmination of decades of Supreme Court jurisprudence recognizing that corporations speak.” In contrast, “no such corpus juris exists to suggest a free-exercise right for secular corporations.” It would have been useful to explain also that corporations are not actual free speech rights-holders even under Citizens United. That is, corporate political speech is protected because of audiences’ free speech right to receive political information rather than corporations’ free speech right to speak. The bottom line, however, is that secular corporations cannot bring religious liberty claims.
What the Gilardi Court got wrong.  Although it ruled that that the Gilardi companies had no RFRA rights, the majority went on to find that the Gilardi brothers’ rights under RFRA had been violated. Many missteps paved the way for the court’s conclusion that the contraception mandate imposed a substantial religious burden on the Gilardi brothers and that the mandate failed strict scrutiny.
Substantial burden – The D.C. Circuit held that forcing the Freshway corporations to carry insurance plans that included contraception amounted to a substantial burden on the Gilardi brothers’ religious opposition to facilitating contraception use.
Unless every burden on someone’s religious belief is a substantial burden, there must be some point at which a burden becomes too attenuated to be “substantial.” Here, the Gilardis have deeply held religious beliefs about contraception. They, however, are not required to use contraception. Nor do they pay for it or provide it. At most, it could be said that their incorporated companies – entities that are legally separate and distinct from their owners – provide contraception as part of their employees’ compensation. It is true that this health care coverage facilitates access, but so does paying employees a decent salary. Facilitating, and facilitating so indirectly, does not amount to a substantial burden for religious liberty exemptions. As the dissent notes, the Supreme Court has never recognized religious liberty claims “when the plaintiff is not himself required to take or forego action that violates his religious beliefs, but merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.”
Compelling state interest – Despite government arguments that the mandate advanced its compelling interest in (1) public health; (2) women’s autonomy; and (3) sex equality, the Gilardi Court held that the contraception mandate advanced no compelling state interest. Apparently, it was unable to spot the “nexus” between access to contraception and women’s health, autonomy and equality.
Of course, the nonpartisan Institutes of Medicine recommended that contraception be fully covered precisely because of its enormous benefit to women (and the children they may bear). The court’s refusal to acknowledge the central role contraception plays in promoting women’s health is bad enough. But then, citing an amicus brief from a group best known for making the discredited claim that abortion causes breast cancer, the majority suggests that the “science is debatable” about contraception’s benefit to women because contraception increases women’s risk of breast, cervical and liver cancers.
The Gilardi Court doesn’t stop there. It then goes on to argue that even conceding that contraception might promote women’s health, “the health concerns underpinning the mandate can be variously described as legitimate, substantial, and perhaps even important, but it does not rank as compelling.” In other words, even though promoting citizens’ health and well-being is a well-established compelling state interest, advancing women’s health is, according to the D.C. Circuit, somehow just not all that compelling. Not surprisingly, despite precedent to the contrary on the state’s compelling interests in the autonomy and equality of women, the Gilardi Court works hard to distinguish it. For example, it writes that while cases establish women’s compelling interest in autonomy, the “wording . . . implies autonomy is not the state’s interest to assert.”
Tailoring – Finally, the Gilardi Court argues that the contraception mandate was not narrowly tailored because “there are viable alternatives.” However, it did not actually list any of them.  
It is a shame that the Gilardi Court’s sympathies seem to lie completely with the corporate owners and not at all with their employees, whose health care will now depend on their bosses’ religious views. Unfortunately, the court took little heed of the Supreme Court’s admonition in United States v. Lee, that exempting religious employers from insurance programs “operates to impose the employer’s religious faith on the employees.”